United States v. Corey Timmons

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10643
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00240-WS-C-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COREY TIMMONS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(March 4, 2015)
Before MARTIN, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
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Corey Timmons appeals his conviction for one count of conspiracy under
the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §
1962(d).
I.
Timmons argues that, because he did not have the requisite mens rea, there
was not a sufficient factual basis for his guilty plea in violation of Federal Rule of
Criminal Procedure 11(b)(3). He also argues that the district court did not
adequately explain the charges against him, as is required by Federal Rule of
Criminal Procedure 11(b)(1)(G). Upon review of the record and consideration of
the parties’ briefs, we affirm.
Timmons pleaded guilty to conspiring to participate in the conduct of an
enterprise through a pattern of racketeering activity, which in his case involved the
purchase and sale of previously stolen goods. At the plea hearing, Timmons, his
attorney, and the district court had a number of exchanges about what was included
in the plea and the extent to which Timmons would be held responsible for acts of
the enterprise which occurred before he became involved. Timmons also crossed
out several phrases in the government’s account of the facts which indicated that
he knew the electronics were stolen. Still, after hearing several different
explanations of the elements of the offense and the scope of his culpability,
Timmons said that he did not have any more questions and entered his plea of
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guilty. He was sentenced to 35 months’ imprisonment and a period of supervised
release, and he was directed to pay $68,496.03 in restitution. Timmons never
attempted to withdraw his guilty plea.
II.
Timmons first claims that there was not a sufficient factual basis for his
guilty plea under Rule 11(b)(3). When a defendant does not object to a plea
agreement or move to withdraw his plea in the district court, we review a Rule 11
challenge for plain error. United States v. Rodriguez, 751 F.3d 1244, 1251 (11th
Cir.), cert. denied, ___ U.S. ___, 135 S. Ct. 310 (Oct. 6, 2014). The defendant
bears the burden of establishing plain error, and must show “(1) error, (2) that is
plain, and (3) that affects substantial rights.” Id. at 1251 (quotation omitted). If
the defendant satisfies all three conditions, we may exercise our discretion to
reverse only where the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Moriarty, 429 F.3d 1012,
1019 (11th Cir. 2005) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.
Ct. 1770, 1776 (1993)).
First, to show error when reviewing a claim of insufficient factual basis for a
guilty plea, we evaluate “whether the trial court was presented with evidence from
which it could reasonably find that the defendant was guilty.” United States v.
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Frye, 402 F.3d 1123, 1128 (11th Cir. 2005) (per curiam) (quotation omitted). We
need not find uncontroverted evidence of guilt, and we may affirm even where a
reasonable factfinder could have ruled in favor of the defendant after a trial.
United States v. Owen, 858 F.2d 1514, 1516–17 (11th Cir. 1988) (per curiam).
Timmons pleaded guilty to a RICO conspiracy, under which the government
must prove that the defendant objectively manifested, through words or actions, an
agreement to participate in the underlying conspiracy. United States v. Starrett, 55
F.3d 1525, 1543 (11th Cir. 1995) (per curiam). This agreement can be (1) an
agreement on an overall objective, or (2) an agreement to personally commit two
predicate acts participating in the single objective conspiracy. Id. at 1544. “There
is rarely any direct evidence of an agreement to join a criminal conspiracy, so that
a defendant’s assent can be inferred from acts furthering the conspiracy’s
purpose.” United States v. Gianni, 678 F.2d 956, 959 (11th Cir. 1982). The
government can prove an agreement on overall objective through circumstantial
evidence showing a defendant must necessarily have known that others were
participating in the same racketeering enterprise. Starrett, 55 F.3d at 1544. The
government need not prove that the defendant knew his co-conspirators or was
aware of all the details of the conspiracy. Id.
The district court did not plainly err when it found “ample evidence” that
Timmons agreed to participate in the underlying conspiracy to sell stolen property.
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Owen, 858 F.2d at 1516. Throughout sentencing, Timmons repeatedly claimed
that he did not know the property was stolen and was merely a businessman. Yet
many facts in the record cast considerable doubt on his protestations. For example,
in November 2011, Timmons orchestrated the sale of a shipment of computers and
televisions. The circumstances of the sale were highly suspicious. Timmons met
the purchaser in a storage unit parking lot and received nearly fifty thousand
dollars in cash, which Timmons immediately distributed to three of his co-
conspirators. The woman who made the electronics purchase later called
Timmons, and in that recorded call he told her not to talk to law enforcement
officers about the sale. Enterprise leader Jason Spellen told Timmons in a
recorded call that he shipped items that were “on fire” out of the country, and that
he never stored inventory at his house to avoid police detection. Once Spellen was
under investigation, Timmons offered to stop an incoming shipment of
merchandise to Spellen, who agreed because he couldn’t take “any more damage.”
All of this together is ample evidence to support the finding that Timmons
knowingly participated in the conspiracy to sell stolen goods.
Even if Timmons were able to show that the district court committed error in
accepting his plea, he still would not succeed in showing that the error affected his
substantial rights. To show that an error affected substantial rights in the guilty
plea context, a defendant “must show a reasonable probability that, but for the
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error, he would not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). This is a “daunting obstacle” that is
very difficult to satisfy, and if the record shows that “it is as likely that the error
had no effect on his decision, he cannot prevail.” United States v. Davila, 749 F.3d
982, 994 (11th Cir. 2014) (per curiam) (alteration adopted) (quotation omitted).
We may examine the whole record when deciding whether an alleged Rule 11
error affected a defendant’s substantial rights. United States v. Brown, 586 F.3d
1342, 1345–46 (11th Cir. 2009). Timmons offers no compelling argument that he
would not have entered the plea absent the error. He never claimed that his
behavior was innocent, 1 and the plea agreement he signed indicates that Timmons
and his attorney evaluated his chance at trial on two counts and ultimately agreed
to plead guilty on one instead. Beyond that, Timmons never challenged the plea
until this appeal, which also weighs in favor of harmless error. See United States
v. Bonilla, 579 F.3d 1233, 1239 (11th Cir. 2009) (noting that a defendant did not
object or move to withdraw the plea at either the hearing or at sentencing,
1
Timmons alleges that he professed his innocence at sentencing by saying he was “not in the
business of illegitimate products. I just met Jason in February of 2011. This incident happened
in November of 2011. Now I’m part of a big conspiracy. I don’t think so. It’s not–.” Though
one interpretation of this statement could be that Timmons was claiming innocence, it is at least
as likely that Timmons was protesting the possibility of being convicted for aspects of a RICO
conspiracy beyond his actual involvement. Either interpretation falls short of showing a
reasonable probability that he would not have pleaded guilty but for the error.
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weighing in favor of harmless error). In short, any purported error here was
harmless, and the district court did not commit plain error.
III.
Timmons next claims that the district court inadequately explained the
charges against him in violation of Federal Rule of Criminal Procedure
11(b)(1)(G). That rule requires the district court to inform the defendant of the
nature of the charges to which he is pleading guilty and determine that the
defendant understands the charges. Fed. R. Crim. P. 11(b)(1)(G). There is no
simple or mechanical rule for complying with this requirement, and the level of
inquiry varies based on the complexity of the charges as well as the defendant’s
sophistication and knowledge. United States v. DePace, 120 F.3d 233, 237 (11th
Cir. 1997). We have indicated that an explanation of the elements based on jury
instructions is “the outer limit” of what is required under Rule 11(b)(1)(G). United
States v. Wiggins, 131 F.3d 1440, 1443 (11th Cir. 1997) (per curiam) (quoting
United States v. Lopez, 907 F.2d 1096, 1099 (11th Cir. 1990)). Because Timmons
did not raise this challenge below, it too is evaluated for plain error. See
Rodriguez, 751 F.3d at 1251.
The district court did not plainly err in explaining the elements of the charge
to Timmons. During Timmons’s plea colloquy, the district court detailed the
elements of Timmons’s offense, clarified what the offense did and did not include,
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and ensured that Timmons understood and had no more questions before accepting
his guilty plea. This was sufficient to satisfy Rule 11(b)(1)(G). Timmons argues
that the modifications he made to the proffered factual basis for his plea and his
statements to the court both indicate that he did not understand the elements of the
offense. Based on this, he argues, the district court was then obligated to go
beyond its original explanation to make sure he fully understood the charges.
While it may be true that a court must engage in additional explanation with a
defendant whose statements suggest he does not understand the charges against
him, the district court here was not faced with that situation. Timmons’s
modifications to the factual basis for the plea and his back and forth discussion
about what aspects of the conspiracy were attributable to Timmons all focused on
the scope of his culpability within the larger enterprise, not whether he understood
the charges themselves. The district court’s explanations satisfied the “outer limit”
of what Rule 11(b)(1)(G) requires and did not constitute plain error.
AFFIRMED.
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